In the Federalist, James Madison laid out the logic by which tyranny would be prevented in the new American nation. Donald Trump and Elon Musk are testing his logic as never before.
Madison wrote that national stability would depend upon an “extended republic,” a heterogeneous country in which no single “faction” could dominate (Federalist 10). Its constitution would make “ambition …counteract ambition,” with judges, legislators, and presidents each jealously guarding their powers against encroachment by the others (Federalist 51). Moreover, it would depend upon legislators and judges hewing as much to the powers of their own offices as to political ideology (Federalist 48).
Madison’s system is in crisis as Trump and Musk remake and abolish federal agencies that Congress enacted and refuse to spend monies it appropriated. As scholars of separation of powers and republican government, we write with confidence that these attacks on our government are unprecedented. Finding the words to describe these moves is challenging. Journalists have been wrestling, often unsuccessfully, with the best ways to clarify these actions to the public.
Trump’s actions are best summed up as “unrepublican,” violating the republican system of government that Madison envisioned and that we have enjoyed since our country’s founding. To save our republic, we need to understand how we got here.
While the Trump administration shutters agencies Congress has created and decides whether to spend monies authorized by law, Congressional Republicans do not defend the legislature’s most fundamental power—the authority to control government spending.
Why is the GOP so supine? A key reason is that the party is more nationalized than it used to be. Regardless of where they were elected, Republicans face acute and similar pressure from the same powerful interests and the same partisan media to stick with their partisan team. Trump’s dominance over his party has dramatically intensified these incentives. Congressional Republican capitulation to Trump is stunning but logical: it reflects their political calculus.
It is not in any Republican member’s political interest to take on Trump. Trump’s wrath and Musk’s deep pockets can trigger a primary campaign. Members also fear MAGA activists. (A new piece in Vanity Fair by Gabriel Sherman says they fear physical violence from Trump supporters, to boot.) As a result, even the most Trump-wary Republican members keep their heads down and hope that others will pick up the slack. Nationalized polarization stops Madison’s ambition countering ambition.
The administration’s unaccountable personnel are a second force undermining congressional power. Musk is not Senate-confirmed, of course. Beyond that, he is not an “officer of the United States” to whom Congress has delegated power.
The Constitution depends upon the concept of “office” when considering delegated power. The first laws in America creating new agencies (notably, the Treasury Department) delegated power to such “officers.” Musk’s floating status (and that of his team) defies a republican government in which power is vested in positions by law, not persons by whim.
The threat to constitutional government stems not only from the White House. Networks of corporate power now operate on a scale that the Founders could not have imagined, fueled by the Supreme Court’s 2010 Citizens United decision. Still, we have never seen the merger of economic and political power as embodied in Musk.
It is astonishing enough that a man (not an “officer of the United States” and not a presidential appointee) is given the keys to the Treasury payment system. But this man, the wealthiest in modern history, spent unprecedented sums to help the president win. He controls one of the world’s largest social/media networks, relaying and propagating threats to those who resist his initiatives. He employs a range of engineers who can draw upon their technical skills to implement his policy objectives. Musk’s conflicts of interest—government contracts, tax subsidies, and favorable regulations—are likewise without precedent. The separation of powers, checks and balances, and federalism were designed to prevent this accretion of power.
That the government’s payment and personnel systems operate electronically makes it easy to control the levers of government. In earlier eras, to do what Musk is doing now, you would have to have control of thousands of clerks and lower-level administrators.
This is not entirely a Republican story. Democrats battling gridlock have often supported the accretion of legislative powers to the presidency—most notably through lawmaking by executive order and directives. But Trump’s presidential power grab has no parallel.
Before now, only the Nixon Administration claimed a generalized impoundment power across statutes and agencies, a power that Ronald Reagan’s administration decided not to assert. Moreover, even the Nixon administration’s Office of Legal Counsel at the Justice Department recognized that such a generalized power over spending was constitutionally dubious. And, of course, Nixon’s attempted power grab met a swift and overwhelming bipartisan congressional rebuke. Finally, Nixon obeyed the Supreme Court’s order to turn over the Watergate tapes. Would Trump show such compliance? No one can say.
Given the abdication of congressional Republicans, lawsuits have become the primary instrument of those seeking to block presidential aggression. We believe several of the administration’s actions are unlawful under longstanding constitutional doctrines. But the Supreme Court has become highly partisan, with justices often lining up on predictable partisan lines even on issues, such as presidential immunity, that touch on core constitutional roles. Even when federal courts act to restrain the administration, these decisions are not self-enforcing. They depend on officials’ calculus that refusing to comply with judicial orders will damage their careers irreparably. Trump has leveraged nationalized polarization to create a different calculus: personal loyalty will be rewarded while defectors are targeted for retribution. The pardon power stands as the ultimate guarantor of legal impunity.
Madison understood that the Constitution could not enforce itself. What was needed was a culture of tension between branches. He and other defenders of republican government—which to him meant, more than anything else, the rejection of monarchy—relied upon a world where the diverse local attachments of a vast country would push back against the formation of highly unified partisan teams operating across the government. They anticipated that legislators, judges, and administrators would respect their offices and defend their turf, even against people in their own parties. They also had a word for the absence of this commitment to separated powers and constrained office: corruption.
